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The Advantage Blog

  • Tsongas Litigation Consulting


Updated: Jul 13, 2023

Now that some of the heat has started to diminish from the hearings of now-Justice Brett Kavanaugh, it is useful to look at some of the lessons that can be learned for teachers and practitioners of witness testimony. His testimony provides important instruction for trial witnesses, most of whom do not have the luxury (and misfortune) of speaking to audience members who have already formed their opinion about the speaker’s trustworthiness and credibility.

The most important lesson that I observed was a reinforcement of the vital role person/act reasoning plays for audience members when attempting to draw conclusions about the issues in a case. I have covered this in detail in the past, but to summarize, person/act reasoning occurs when one uses evidence of what a person is like or how they behave and then surmises the types of acts in which this person would likely engage.

Critics of Kavanaugh used this reasoning in at least two important ways after his second round of testimony, where he displayed anger and disgust at the accusations leveled upon him by Dr. Ford and others. First, they reasoned that the frustration he displayed on the stand was a sign of someone who does not react well when he does not get what he wants. His opponents suggested that it displayed a sense of entitlement that evolves into anger when he is denied what he thinks he “deserves.” It was suggested that this attitude is consistent with someone who might attempt to engage in sexual assault. The reasoning is that a person who gets mad when he does not get what he wants is likely to just take it anyway.

A second line of thought was that someone who behaves this way during testimony is also likely to act in this manner on the bench, meaning Kavanaugh does not have the right temperament to be a Supreme Court justice. Again, the line of thought goes from the behavior of the “person” to judge how he will act in other situations, such as making critical decisions on legal cases of national significance.

Supporters of Kavanaugh also drew some conclusions from his behavior, conclusions that were more positive. They saw him acting as a fighter, willing to stand up to his critics and push back against wrongful criticism. Again, this behavior can be extrapolated to how he likely will act on the Supreme Court, which is to stand up for the principles that he has in common with his supporters.

The other lesson from a communication perspective was the importance of non-verbal communication. Laura Dudley, a Northeastern clinical professor and behavioral analyst, cited Kavanaugh’s yelling as a sign of his anger, as well as other non-verbal behaviors like furrowed eyebrows, scrunched nose, and pursed lips.

These non-verbal cues were used to assess his temperament, and many found his behavior objectionable. In fact, Sen. Heidi Heitkamp cited her viewing of Kavanaugh’s testimony with the sound off as the deciding factor for her “no” vote, saying, “We communicate not only with words, but with our body language and demeanor. I saw somebody who was very angry, who was very nervous. . . . I saw rage.”

The difference between the effect of Kavanaugh’s behavior and that of a trial witness is that most of the people in Kavanaugh’s audience had already made up their minds (with the possible exception of Sen. Heitkamp), so in the end there were not significant changes in audience attitudes. Notwithstanding the bias present in many jurors, more of them are making up their mind during the trial and are not starting with a predetermined position. This makes it all the more important to make sure your witness does not convey a characterization of his or her character that will result in the confirmation of the other side’s case.

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